CBA Record January 2019

Y O U N G L A W Y E R S J O U R N A L

SUBSTITIONS, DISMISSALS, AND NONSUITS The Voluntary Dismissal: Getting It Right By Alexander J. Beehler

O ne of the many benefits of working in chambers with the Presiding Judge of the Circuit Court of Cook County’s Law Division is having an opportunity to see how the court admin- isters cases around their trial dates. For the most part, trials proceed and are assigned without a hitch. Things can get tricky, though, when there are judge substitutions, or if a plaintiff decides to take a voluntary dismissal or nonsuit. Often, as the trial date looms, someone from plaintiff’s office will deliver a proposed order containing lan- guage such as, “Plaintiff hereby voluntarily dismisses her lawsuit.” A court cannot enter

will highlight the steps both plaintiffs and defendants should take to ensure the rights of their clients are not impeded when a voluntary dismissal occurs. Voluntary dismissals are governed by 735 ILCS 5/2-1009. The statute allows plaintiffs to voluntarily dismiss actions at virtually any time, with certain limiting conditions that: (1) the dismissal must occur before trial or hearing begins; (2) notice must be given; and (3) costs must be paid. If the plaintiff complies with all of the statute’s requirements, the right to voluntarily dismiss is absolute. Courts do have discretion, however, to decide

an order if that is the only language—the proposed order does not mention notice or costs. Litigants are frequently surprised when the court asks for revisions. This article aims to inform and instruct both plaintiffs’ and defense attorneys on volun- tary dismissals under Illinois law. The goal of this article is to provide a practice-ready synopsis of the law. If you are interested in learning more, Richard Michael devotes a portion of a chapter to voluntary dismissals in his Illinois Practice Series book, Civil Procedure Before Trial. Richard A. Michael, Civil Procedure Before Trial § 42.2, (2d Ed. 2011). This article

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